A criminal case based on a sex offender’s statements in a treatment program highlights the state program’s murky line between therapeutic and investigative purposes.
ST. PAUL, Minn. (CN) — The Minnesota Supreme Court heard arguments Tuesday in the case of a man who claims sex-offense confessions made to his probation officer as part of a court-mandated program are protected by the Fifth Amendment.
Adam McCoy’s appeal highlights a potential conflict between the state’s rehabilitation programs for sex offenders, their requirements of full disclosure and the constitutional rights of those offenders.
McCoy was charged in 2019 with two counts each of first-degree and second-degree criminal sexual conduct for the 2005 assault of his 2-year-old stepdaughter. A district court granted McCoy’s motion to suppress the statements that gave rise to the charges, which he made to his probation officer and a polygraph examiner during treatment mandated by a court as part of his probation for another sex offense.
The court ruled that the statements, in which McCoy detailed an assault of his stepdaughter along with other unidentified victims, were inadmissible because they violated his right against self-incrimination under the Fifth Amendment of the U.S. Constitution.
The case was dismissed, but prosecutors won a reversal in the Minnesota Court of Appeals, which found that because McCoy’s disclosures were not compelled because he did not assert his right against self-incrimination before filling out a detailed questionnaire and taking a polygraph test, and was informed that the examiner and probation officer were mandatory reporters.
McCoy’s lawyer, Zachary Johnson of Park Rapids, Minnesota law firm Thomason, Swanson & Zahn, argued Tuesday morning that his client had been trapped in a Catch-22. Without an attorney present, he said, McCoy should not have been expected to know what statements could be incriminating.
“It should not be up to the individual probationer to know where to draw the line,” Johnson said. “The question of whether something is incriminating or not is often a legal question or an investigative question, and often we’re not dealing with sophisticated parties.”
He added that a decision that the ostensibly rehabilitative treatment process can be used to prosecute offenders could lead Minnesota defense attorneys to advise their clients not to participate in sex offender treatment at all.
“Every lawyer would have to advise their clients to participate in sex offender treatment at their own peril,” he said. “No probationer in his right mind would ever agree to cooperate with that.”
Johnson also sought to distinguish McCoy’s case from State v. Murphy, a 1983 case in which the Minnesota Supreme Court decided that the Fifth Amendment does not make statements to a probation officer about crimes unrelated to the probation inadmissible if the probationer does not assert his right to avoid self-incrimination.
“The nature of this encounter was incredibly different than what happened in Murphy. In Murphy, we had a normal probation interview,” Johnson said. “That’s different here, and I think the court can see the difference.”
The state, meanwhile, argued that Murphy was an appropriate precedent to apply. Cass County Attorney Ben Lindstrom, whose jurisdiction lies in the north-central part of Minnesota, pointed out that, like in Murphy, McCoy volunteered the information without being threatened with breach of probation, imprisonment or any other penalty.
“The appellant was never told that he needed to provide information that would incriminate him. As a matter of fact, the polygraph provider was very clear on that, ‘don’t provide us incriminating information,’” Lindstrom said, adding that pleading the Fifth is a legitimate excuse under the rules of probation.
Much of the court’s questioning surrounded whether a threat was implicit in the requirement of a full-disclosure polygraph, especially in light of the fact that McCoy was not read his Miranda rights ahead of time.
“How should we be defining threat?” Chief Justice Lorie Gildea asked Lindstrom.
The prosecutor argued that threats, in this case, would have to be unlawful actions, and that the possibility of a probation violation didn’t qualify.
“I would distinguish consequences from threats,” he said. “I would distinguish the lawful imposition of a consequence versus the unlawful imposition of a consequence.”
Justice Paul Thissen also pondered aloud whether the issues presented by McCoy’s case could be better resolved by amending Minnesota’s rules of evidence to clarify when and whether statements like his could be admitted.
Justice Barry Anderson poked at Johnson’s effort to set his client’s case apart from Murphy, drawing out a sideswipe against Lindstrom.
“This issue’s been around a while, and Murphy’s been around a while, and I don’t see any indication that the roof is falling in,” Anderson said.
Johnson agreed, with a major caveat.
“The reason why you haven’t seen the sky falling in… is because these prosecutions should be rare,” he said. “Many prosecutors in the state, the idea of prosecuting a crime on the basis of these statements is just something they would not choose to do.”
“These prosecutions should be relatively rare. I would hope they would be, at least,” he added. “But now that we are faced with one, it could be a case where bad facts make bad law.”
Minnesota’s sex offender rehabilitation process has been at the center of several controversies in recent years, many of them focused on the state’s civil commitment program for offenders deemed to be sexually dangerous persons.
A federal judge’s 2015 order requiring the state to create pathways to release for committed offenders was overturned by the Eighth Circuit two years later, but releases have become slightly more common regardless. Before 2015, no one had ever been fully released from the program in its 20 years of operation, and only three people had been conditionally released.
Since then, 13 detainees have been fully released, and 11 were conditionally released in 2020. Those numbers are still dwarfed by the approximately 740 current detainees and the 86 who have died in the program’s custody.
McCoy was not civilly committed at the state’s sex offender treatment facility in Moose Lake, but Mitchell Hamline School of Law professor Eric Janus said his dilemma is not unlike ones faced by many of those offenders. Janus leads the St. Paul law school’s Sex Offense Litigation and Policy Resource Center, and has written critically about Minnesota’s program.
“Certainly, this whole area is fraught, because obviously on the one hand, full disclosure and telling the truth is critical in terms of sex-offender treatment. You’ve got that notion kind of in conflict with the idea that full disclosure can be self-incriminating,” he said.
“That information can be, and often is, used if there’s a sex offender civil commitment proceeding brought,” he added. “And that’s problematic from the perspective of the individual, but it’s also problematic because it creates a disincentive for people to participate in treatment.”
All in all, he said, sex-offender treatment is an admirable goal, but hitches like McCoy’s can make it difficult for offenders to go through the program without fear of consequences.
“We’re pretty sure that participating in sex-offender treatment is a positive thing. It’s helpful, in terms of helping people reenter society. It’s just a conundrum,” he said. “And when you couple that with mandatory reporting laws, even in situations where normally one would expect some confidentiality… these mandatory-reporting laws often mean that the expectation of confidentiality is violated.”